Delhi High Court
Batra Hospital Employees Union (Regd) vs The Management Of Batra Hospital And ... on 30 March, 2011
Author: Rekha Sharma
Bench: Rekha Sharma
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
C.M. Nos.1106/2011 & 1281/2011
In
WP (C) No.516/2011
Reserved on: March 17, 2011
Date of Decision: March 30, 2011
BATRA HOSPITAL EMPLOYEES UNION (REGD) ..... Petitioner
through Mr. Ashwani K. Sakhuja, Advocate
Mr. Prabhakar, Advocate
versus
THE MANAGEMENT OF BATRA HOSPITAL AND MEDICAL
RESEARCH CENTRE AND ORS ..... Respondents
through Mr. Arun K. Bhardwaj, Sr. Advocate
with Mr. Manish K. Sharma and Mr. Vishal
Malhotra, Advocates for respondent No.1.
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
1. Whether the reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the „Digest‟? Yes
REKHA SHARMA, J.
The petitioner is a registered trade Union. It purports to represent 329 workers and has raised an industrial dispute on their behalf which is pending adjudication before an Industrial Tribunal at Karkardooma Courts. The terms of reference are as under:-
"Whether the employees-employed by M/s Clean and Care Enterprises (Contractor) as per Annexure "A" are entitled to be regularized with M/s. Batra Hospital and Medical Research Centre, and if yes; what directions are necessary in this respect?"
CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 1 It is not in dispute that an agreement styled as "Agreement of Service Contract" dated January 01, 2006 was entered into between respondent No.1, namely, Batra Hospital and Medical Research Centre of Ch. Aishi Ram Batra Public Charitable Trust (in short, called "Batra Hospital") of the first part and M/s Clean N Care Enterprises of the second part, and thereby respondent No.2 was to provide manpower services to respondent No.1 for efficient, effective and timely patient care.
What is in dispute is, whether the workmen who were employed/engaged in giving effect to the aforementioned agreement are the employees of respondent No.1 or of respondent No.2. It is the case of the workmen before the Industrial Tribunal that they have been working in the hospital for the past several years and have been discharging their duties in the premises of the hospital under the direct supervision and control of respondent No.1 and that respondent No.2 has been introduced by respondent No.1 as a sham entity in order to deprive them of the benefits which are enjoyed by the regular employees of the hospital. It is also their case that their attendance record is maintained by respondent No.1 and it is respondent No.1 which directly pays wages to them.
On the other hand, relying upon the terms of the "Agreement of Service Contract" to which I shall advert to a little later, respondent No.1 has denied any role in the employment/engagement of the workmen. It says that they are exclusively the employees of respondent No.2.
The matter is pending before the Tribunal and it has yet to adjudicate upon the rival submissions of the parties. In the meanwhile, CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 2 it so happened, that the aforesaid agreement dated January 01, 2006 which was being renewed annually from time to time, was again renewed but only for a period of one month vide letter dated June 29, 2010, i.e. from June 30, 2010 to July 31, 2010. The workmen, apprehending that with the coming to an end of the contract between respondent No.1 and respondent No.2 on July 31, 2010, their services might also come to an end, filed an application before the Industrial Tribunal dated July 23, 2010 where the issue of regularization of their services is pending adjudication, praying that respondents No.1 & 2 be restrained from terminating/ceasing or in any way determining their employment till the pendency of the industrial dispute. The Industrial Tribunal deferred hearing on the application, as till then, its powers as an Industrial Tribunal had not been notified. Aggrieved by the non-disposal of its application, the petitioner filed a writ-petition which was disposed of by a learned Single Judge of this Court vide order dated July 30, 2010, the relevant part of which reads as under:
"Considering the overall circumstances of the matter, I am of the view that the prayer made by the petitioner is quite reasonable. I, therefore, direct that the status quo be maintained by the respondent and no coercive action shall be taken against the employment of the workmen till the application filed by the petitioner is decided by the Presiding Officer after the notification of his powers at an early date. The writ petition as well as CM are accordingly disposed of."
The aforesaid order was affirmed by a Division Bench of this Court on August 31, 2010.
It was on January 24, 2011 that the Industrial Tribunal decided the aforesaid application of the petitioner but it declined the prayer on CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 3 the ground that the interim relief praying for status-quo with regard to the employment of the workmen is not incidental to the main relief whereby they are praying for their regularization with respondent No.1. Once again, feeling aggrieved from the order of the Tribunal, the petitioner has approached this Court by way of the present writ-petition and has also moved an application praying for an interim order injuncting respondent No.2 from removing/terminating the services of workmen and directing respondents No.1 & 2 to maintain status-quo in respect of their employment. This Court on January 27, 2011, after hearing learned counsel for the petitioner issued notice to the respondents both in the writ-petition as well as in the interim application, and in the meanwhile, having regard to the fact that the workmen have been enjoying the interim protection by virtue of the order of this Court first passed by the Single Judge and then by the Division Bench, directed that status-quo in respect of their employment be maintained till the next date. After the service of notice upon the respondents, respondent No.1 filed an application praying for recall of the order of status-quo passed in relation to respondent No.1 or to clarify that the order of status-quo pertains only to respondent No.2 and not respondent No.1. It is this application of respondent No.1 and the application of the petitioner on which ex-parte interim order was passed directing the respondents to maintain status-quo, which are the subject matter of the present order.
The workmen have contended before me that they are working in the hospital not from January 01, 2006 but much prior thereto and that while the contractors keep changing, they have continued to work in the hospital. As per them, they are doing jobs of perennial CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 4 nature and that the entering of a contract by respondent No.1 with respondent No.2 or with any other contractor is only a cloak to keep them on tenterhooks and to deprive them of the status and benefits which regular employees of the hospital enjoy. They contend that the termination of their services while the issue of regularization is pending before the Industrial Tribunal is a matter incidental to regularization and that the order of the Tribunal in holding that the relief of status-quo sought in the interim application is not incidental to the main relief, is erroneous. It is also their grievance that despite the order of status-quo passed by this Court, the Management is not letting many of the workers enter the hospital and it is putting all kinds of impediments in their way to defeat the order.
As against the case set-up by the petitioner, it is contended by respondent No.1 that the relief of status-quo sought by the workmen is wholly misconceived, as at no point of time, they were employed by it. As per respondent No.1, it has outsourced the work of providing efficient, effective and timely patient care and for this purpose, private contractors are engaged on annual basis and it is the contractors who arrange the manpower for doing the job. To make good the submission that the workmen are exclusively the employees of the contractor, following clauses of the "Agreement of Service Contract"
dated January 01, 2006 have been referred to and relied upon:-
"x x x x x x x
4. That the personnel deputed by the contractor shall be deputed after police verification and screened by General Manager (HRD)/Addl. General Manager of the Hospital who shall have right to reject any such person without assigning any reason and all such persons employed by the contractor shall wear CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 5 proper and presentable uniform duly approved by General Manager (HRD)/Addl. General Manager of the Hospital. Such uniforms shall be provided by party of the second part at its own cost. Such employees of the contractor shall not at any time waste, spoil, damage, embezzle, lend, spend or take away property of the Hospital.
5. That the party of the second part shall be absolutely responsible for any damage or loss caused because of any act of omission or commission on the part of personnel of the contractor. The contractor shall compensate the party of the first part if it is found that the loss has been caused due to negligence/fault of contractor or his employees.
6. That the contractor shall furnish documentary evidence relating to ESI and P.F. No.(s) of all such personnel employed by him, within 30 day of the signing of the contract or of employment in case of future employees.
7. That the persons engaged/arranged/ employed by the contractor for rendering of services shall be exclusively his employees and shall in no case be deemed to be employees of the Hospital.
8. That the contractor shall make necessary arrangement in case some member of his staff does not turn-up for duty and should ensure that there are minimum 223 Contract Workers deployed at the Hospital per day.
9. That the contractor alone shall be liable to supervise, control and manage all persons engaged/arranged as aforesaid, either by himself or through his representative(s).
10. That the contractor shall be solely responsible for the Wages and other claims in respect of the persons engaged/arranged by him.
11. That the contractor shall be responsible for liability to all or any of the persons so engaged/arranged by him under any legislation and also for any misconduct, negligence or other culpable act on their part.
CM. Nos.1106/2011 & 1281/2011 in
WP (C) No.516/2011 Page 6
12. x x x x x
13. x x x x x
14. If any Labour Laws are applicable to the
contractor in respect of the workers engaged/ arranged by him, then the Hospital will not be liable for the same and it will be sole responsibility of the contractor to comply with the statutory requirements as applicable.
15. x x x x x
16. x x x x x
17. That the contractor shall be responsible for the general conduct and discipline of his staff."
The claim of the workmen that they are the employees of respondent No.1 and not of respondent No.2, is also sought to be refuted by the learned Senior counsel for respondent No.1 with reference to the documents which respondent No.1 has filed before the Industrial Tribunal along with its reply to the claim petition of the workmen. One set of those documents has been placed on the record of this Court as well. One of the documents, to which reference has been made, is the licence obtained by respondent No.2 from the Government of National Capital Territory of Delhi to engage contract labour under Section 12(1) of the Contract Labour (Regulation and Abolition) Act, 1970 for doing the work of maintenance and house-keeping in the establishment of respondent No.1. On the strength of this document read along with the aforementioned clauses of "Agreement of Service Contract", it is contended that it was not for nothing that respondent No.2 had obtained the licence to hire contract labour. Reliance is also placed upon monthly bills raised by respondent No.2 upon respondent No.1 between the period CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 7 January, 2010 to July, 2010. The amounts claimed through these bills were to the tune of ` 13,39,111/-, ` 16,96,335/-, ` 17,07,082/-, ` 23,61,627/-, ` 23,50,090/-, ` 23,72,479/- and ` 22,69,705/-. The bills indicate the number of workers that were engaged in each of these months, their duty hours and the consolidated monthly salary that was paid to them. The bills also indicate that in none of these months, the maximum number of workmen employed exceeded more than 281. Respondent No.1 has also placed on record the attendance register to show that it was being maintained by respondent No.2 and the salary record of the workmen which, too, was being maintained by respondent No.2 and which carried details, such as, number of days for which a workman had worked in a month and the amount of salary that was paid to him after deductions against his signatures. On the basis of these documents, respondent No.1 tried to refute the claim of the workmen that they were being paid their salary by the Management of the hospital, or that their attendance was being marked by the Management. The learned Senior counsel for respondent No.1 has also called into question the bonafides of the petitioner in espousing the cause of the workmen. It is alleged that the petitioner is indulging in proxy litigation for respondent No.2/contractor who is aggrieved by the non-renewal of his contract by respondent No.1. It is further alleged that the petitioner is not representing 329 workers as claimed by it, in as much as, 109 workers were never reporting for duty for the last one year, while the names of 22 workers have been shown twice in the list of workmen and that only 24 workers reported for duty after the orders were passed by this Court. It is also the case of respondent No.1 that a contract dated January 27, 2011 CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 8 has been entered into with a contractor, namely, M/s Accord Placement Services and that with the coming into effect of the fresh contract, there is no scope for the workmen of the erstwhile contractor to continue working in the hospital, as the new contractor has engaged its own labour.
It is also contended by the learned Senior counsel for respondent No.1 that an Industrial Tribunal does not possess the power to grant interim reliefs and in support, reliance has been placed upon a judgment of this Court rendered in the case of Airport Authority of India versus Pyare Lal & others, reported in MANU/DE/3838/2006. In the said case, the workmen were seeking regularization of their services with the Airport Authority from the date of joining which dispute was referred to Central Government Industrial Tribunal and pending the dispute, the workmen had sought interim relief restraining the Airport Authority from removing them from their services. The Tribunal had granted them the order of status-quo but this Court after considering several judgments of various Courts reversed the same and held that, "the consistent judicial view is that although an Industrial Tribunal/Labour Court can, in certain situations, pass an interim award, it has no jurisdiction to pass an order of injunction of the nature which a Civil Court can pass under provisions of Order 39 of the Code of Civil Procedure." It was further held that, "the interim injunction granted by the CGIT virtually granted the final relief to the workmen inasmuch as the workmen had been secured in the service of Airport Authority despite its plea that it was not at all the employer of the said workmen." This judgment was followed by another Single Judge of this Court in the case of Oil And Natural Gas Corporation Ltd. Versus CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 9 Santosh Kumar Sharma & Ors., CM(M) No.815/2007, dated February 16, 2010. The learned Judge relying upon the case of Airport Authority of India (supra) held that the Industrial Tribunal has no power to grant interim injunction and also noted that the question, whether the Industrial Tribunal has the power to grant interim injunction, is pending adjudication before the Supreme Court of India. In this view of the matter, the learned Judge extended the interim protection restraining the Management from terminating or discharging the services of the workmen by three months, on the ground that they were enjoying the same since the year 1997 and would in all likelihood prefer to agitate the matter further before the Supreme Court in appeal.
As against the judgments relied upon by the learned Senior counsel for respondent No.1, learned counsel for the petitioner referred to a judgment of the Bombay High Court in the case of Mukand Ltd. versus Its Workmen, (represented by Sarva Shramik Sangh), Thane & Ors., reported in 2004 LLR 674, wherein relief of interim injunction was granted relying upon a judgment of the Apex Court in the case of Steel Authority of India Ltd. versus National Union Waterfront Workers & Ors., reported in 2001 LLR 961 (SC). The counsel for the petitioner also placed reliance upon judgment of the Apex Court in the case of Harjinder Singh versus Punjab State Warehousing Corporation, reported in 2010(1) SCR 591; Secretary, Haryana State Electricity Board versus Suresh & Others etc. etc. , reported in 1999 LLR 433, and Rajender Singh versus Delhi Transport Corporation and another, reported in 2002 LLR 940.
CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 10 For what has been noticed above, two questions emerge for consideration. One, whether the relief of status-quo prayed for by the workmen vis-à-vis their employment is incidental to the main relief of regularization which is pending before the Tribunal, and second, whether the Tribunal possesses the power of granting interim injunction pending disposal of the reference before it.
The question, whether the workmen are entitled to be regularized by respondent No.1 is inextricably linked with the question, whether they are the employees of the hospital or were employed by the contractor. The two issues cannot be delinked. The Industrial Tribunal in order to determine, whether the workmen are entitled to regularization of their services with the Management, will have to first give a finding, whether they were the employees of the Management or of the contractor. If on the basis of the evidence led before the Tribunal, it comes to the conclusion that they were the employees of the contractor, then obviously they would not be entitled to regularization with the Management. If, on the other hand, it comes to the conclusion that their employment with the contractor was only a camouflage and that they were, in effect, and, for all intents and purposes, the employees of the Management, then not only will they be entitled to regularization but as a consequence of such finding, their termination, if it is linked with the cessation of contract with the contractor, will also go. But in either case, the Tribunal will be, in no position, to adjudicate upon the disputes without recording evidence and without appreciating the material on record on merits. In this view of the matter, I feel, had the Tribunal passed an interim order in favour of the workmen granting them interim protection against termination, CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 11 it would have tantamounted to granting them the main relief itself. Hence, I hold that its refusal to grant any such relief cannot be faulted.
On the question, whether the Tribunal has the power to grant interim injunction, I would rather go by the two judgments of this Court in the case of Oil And Natural Gas Corporation Ltd. (supra) and Airport Authority of India (supra) whereby it has been held that the Tribunal enjoys no such power, than by the judgment of the Bombay High Court in the case of Mukand Ltd. (supra). In any case, since the issue is pending before the Apex Court, it will be prudent to await the final verdict of the Apex Court. As regards the other judgments relied upon by the learned counsel for the petitioner, those are judgments where the question of granting interim protection was not directly an issue. Hence, at the present stage of the proceedings, those judgments are not relevant.
It has been brought to my notice by the learned counsel for the petitioner that the decision of this Court in the case of Oil And Natural Gas Corporation Ltd. (supra) has been taken in appeal to the Supreme Court by way of a Special Leave to Appeal being Civil No.14547/2010 and the Supreme Court by its order dated May 14, 2010 had extended the interim protection granted to the workmen by the High Court till the next date of hearing. However, the counsel was not able to tell me, whether the interim protection is still continuing. Nonetheless, having regard to the fact that the workmen in the present case also have been enjoying interim protection since July 30, 2010 and as the issue of power of Industrial Tribunal to grant interim injunction is pending before the Supreme Court, I deem it proper to extend the interim protection hitherto being enjoyed by them for a further period CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 12 of one month in order to enable the workmen to prefer an appeal before the Supreme Court, in case they are so advised.
In view of the above, the application of the petitioner for interim injunction is dismissed and that of respondent No.1 is allowed, but subject to the condition that respondent No.1 shall maintain status-quo in respect of the employment of the workmen for a period of one month from the date of this order.
REKHA SHARMA, J.
MARCH 30, 2011 ka CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 13